MURALEEDHARAN B.R v. KERALA STATE HOUSING BOARD

BY ADVS. SRI. VENUGOPAL V. GOVERNMENT PLEADER SRI. V.HARISH, STANDING COUNSEL, KSHB SRI. GEORGE BOBAN, SC, K.S.H.B. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON

10.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP.(C.)NO.11764 OF 2013 2 JUDGMENT Dated this the 10th day of January, 2024 The petitioner is a practicing Advocate. During a certain period, he was empanelled as a lawyer for conducting cases on behalf of the Kerala State Housing Board. The Kerala State Housing Board suffered an adverse order in O.P.No.206 of 2003 on the files of the Consumer Disputes Redressal Forum, Kannur (Ext.P1). The Board filed an appeal before the Kerala State Consumer Disputes Redressal Commission, as Appeal No.152 of 2006. The said appeal was originally filed through another lawyer and was later entrusted to the petitioner for its conduct.

2. According to the petitioner, owing to a mistake in noting the posting date of the case, the petitioner failed to appear on 15.05.2007, on which date, by Ext.P2 order, the State Consumer Disputes Redressal Commission dismissed the appeal for non- WP.(C.)NO.11764 OF 2013 3 prosecution. Though the petitioner filed Ext.P3 application for restoration of the appeal, the same was also dismissed by Ext.P4 order. Ext.P4 was challenged before the National Commission, which also upheld Ext.P4 order. The petitioner has now been served with Ext.P10 notice under the Kerala Public Accountants Act, 1963, proposing to recover from the petitioner the amount which had to be paid by the Board, in terms of Ext.P1 order of the Consumer Disputes Redressal Forum, Kannur.

3. Sri.P.Vijayakumar, the learned counsel appearing for the petitioner, would submit that a perusal of Ext.P1 order will indicate that the Board had suffered the order on account of the fact that the Board had failed to adduce any evidence before the District Forum and had also failed to cross-examine the witnesses, who gave evidence in favour of the complainant. It is submitted that the petitioner had failed to appear before the State Consumer Disputes Redressal Commission, only on account of the fact WP.(C.)NO.11764 OF 2013 4 that the date of posting of the case was wrongly noted. It is submitted that though the Housing Board came to know of the dismissal of the appeal, they actually brought it to the notice of the petitioner, only several months after it came to their notice. It is submitted that it is in such circumstances that there was delay in filing the application for restoration leading to Ext.P4 order. It is submitted that the Kerala State Housing Board had also approached the Bar Council, with a complaint against the petitioner and no action was deemed necessary by the Bar Council in the matter. It is submitted that though the Board had informed the Bar Council that they intend to proceed against the petitioner for recovery of money by filing a suit, no suit was filed against the petitioner. It is submitted that this writ petition is liable to be allowed on the short ground that, the Kerala State Housing Board was not a notified institution for the purposes of the Kerala Public Accountants Act, 1963, in terms of the provisions contained under Section WP.(C.)NO.11764 OF 2013 5 2(b) of the said Act. It is submitted that the Kerala State Housing Board has been notified only w.e.f

26.12.2013. Reference is made in this regard to SRO No.49 of 2014 published on 22.01.2014, which indicates that the Housing Board was notified as an institution to which the provisions of the Kerala Public Accountants Act, 1963 will apply only w.e.f.

26.12.2013.

4. Heard the learned Government Pleader and the learned Counsel appearing for the Kerala State Housing Board.

5. The learned Counsel appearing for the Kerala State Housing Board states that, on account of the negligence of the petitioner, the Board was forced to pay the amount determined in terms of Ext.P1.

6. Having heard the learned Counsel for the petitioner, the learned Government Pleader and the learned Counsel appearing for the Kerala State Housing Board, I am of the view that, the petitioner is entitled to succeed. Ext.P10 notice issued to the WP.(C.)NO.11764 OF 2013 6 petitioner is dated 27.03.2013. On that date, the Kerala State Housing Board was not a notified institution under the Kerala Public Accountants Act,

1963. Section 2(b) of the Kerala Public Accountants Act, 1963 defines Public Accountant in the following manner; “(b) “public accountant” means a person who, by reason of being employed in the service of the Government or of any other authority or institution notified by the Government in this behalf from time to time in the Gazette, is entrusted with the receipt, custody, possession or control of any moneys or securities for money, documents, or other property belonging to the Government, or to any such authority or institution notified as aforesaid, or who, in his capacity as Government servant, or servant of any such authority or institution, is entrusted with the receipt, custody, possession or control of any moneys or securities for money, documents or other property belonging to any person or persons or to any institution for and on behalf of the Government or any such authority or institution, as the case may be *and includes a person who is, or has been, a Government Law Officer.” WP.(C.)NO.11764 OF 2013 7 It is clear that, unless a notification has been issued by the appropriate Government, extending the provisions of the Act, to an institution like the Kerala State Housing Board, no action can be taken on behalf of the Kerala State Housing Board under the provisions of the said Act. Since on the date of issuance of Ext.P10, the Kerala State Housing Board was not a notified institution, Ext.P10 is liable to be quashed on that short ground. Accordingly, the writ petition is allowed and Ext.P10 is quashed. Sd/- GOPINATH P. JUDGE NB/10-1 WP.(C.)NO.11764 OF 2013 8 APPENDIX OF WP(C) 11764/2013 PETITIONER EXHIBITS EXHIBIT P1 EXHIBIT P2 EXHIBIT P3 EXHIBIT P4 EXHIBIT P5 EXHIBIT P6 EXHIBIT P7 EXHIBIT P8 EXHIBIT P9 EXHIBIT P9(A) EXHIBIT P10 RESPONDENT EXHIBITS: THE TRUE COPY OF ORDER 18/11/2005 OF CDRF,KANNUR IN OP 206/2009 THE TRUE COPY OF JUDGMENT OF CDRC THIRUVANANTHAPURAM DTD 15/5/2007 THE TRUE COPY OF RESTORATION PETITION 51/2008 FILED BY THE PETITIOENR BEFORE CDRC THIRUVANANTHAPURAM DTD 15/5/2008 THE TRUE COPY OF JUDGEMENT OF CDRC THIRUVANANTHAPURAM RET 51/2008 IN IA 417/2008 IN APPEAL 152/06 DTD 25/4/2009 THE TRUE COPY OF ORDER OF NATIONAL COMMISSION, NEW DELHI IN REVISION PETITION 3446/2009 DTD 5/10/2009 THE TRUE COPY OF RECEIPT ISSUED TO SHAFEEKA HASHIM BY IST RESPONDENT, DTD 2/1/2010 THE TRUE COPY OF NOTICE ISSUED BY IST RESPONDENT TO THE PETITIONER DTD 17/3/2010 THE TRUE COPY OF REPLY SENT BY THE PETITIONER TO IST RESPONDENT, DTD 5/4/2010 THE TRUE COPY OF NOTICE NO KBC/CP-7-13/693/13 ISSUED BY THE BAR COUNCIL OF KERALA TO THE PETITIENR DTD 6/3/2013 THE TRUE COPY OF COMPLAINT FILED BY THE IST RESPONDENT BEFORE BAR COUNSEL OF KERALA DTD 22/11/2012 THE TRUE COPY OF SUMMONS ISSUED BY THE 6TH RESPONDENT TO THE PETITIONER DTD 27/3/2013 NIL TRUE COPY P.A. TO JUDGE